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What Were They Thinking?

The U.S. Senate’s constitutional role in the appointment process

for federal judges empowers it to thwart presidential nominations to

the bench, including those nominated to the Supreme Court. More

than one president in our history has felt the stinging rejection of a

prospective member of the High Court.

Article II, section of the Constitution provides that the president

“shall nominate, and by and with the Advice and Consent of Senate,”

shall appoint “Judges of the supreme court.” The “appointment

power” is a shared power, jointly exercised by the president and the

Senate, and thus a vital cornerstone of the doctrine of checks and


At the outset of the founding, it was assumed by political actors

and commentators that the Senate would likely defer to the

president’s judgment unless there were clear reasons why a nominee

should be defeated. In Federalist No. 76, Alexander Hamilton

explained the Senate’s likely deference: “As their dissent might cast a

kind of stigma upon the individual rejected, and might have the

appearance of a reflection upon the judgment of the Chief magistrate,

it is not likely that their sanction would often be refused, where there

were not special and strong reasons for the refusal.” Justice Joseph

Story, one of the greatest scholars ever to hold a seat on the

Supreme Court, observed in his magisterial three volume

commentary on the Constitution: “The more common error (if there

shall be any) will be too great a facility to yield to the executive

wishes, as a means of personal, or popular failure.”

An initial disposition of deference to the president, like an initial

judgment on any other issue in life, however, does not necessarily

lead to an ultimate approval. The Senate, historically, has exercised a

vigorous review of the qualifications of presidential nominees to the

Supreme Court, which has led it to defeat roughly one out of every

five of the president’s choices. Close scrutiny of the qualifications,

skills, temperament, experience and expertise of a nominee who, if

approved by the Senate, will enjoy what is, for all intents and

purposes, a lifetime appointment.

How could it be otherwise? If members of the Senate behaved

like a rubber stamp, there would be no value in adding the Senate to

the appointment power, no expected benefit derived from the

wisdom, insights, values and judgment of a body whose advice and

consent to the president’s nomination power was viewed by the

framers of the Constitution as a huge improvement over the English

King’s sole authority to appoint people to judgeships. Senators, like

presidents, are expected to bring to bear their own independent

judgment of the nominees’ political, judicial and constitutional

philosophies, a duty particularly important when the balance of the

Supreme Court is at stake.

Senate consideration and occasional rejection of controversial

presidential nominees to the Court reflects politics and partisanship,

as well as the purported qualifications of the candidate. History

records a checkered record: some controversial nominees have been

ultimately approved after a bitter fight, while others were doomed,

seemingly from the start.

In 1916, President Woodrow Wilson nominated Louis Brandeis to

the Supreme Court. Although regarded as one of the nation’s very

best attorneys, Brandeis was controversial, not merely because he

was a leading progressive voice on issue of social justice but

because he was Jewish at a time when anti-semitism was pervasive.

His nomination was bitterly contested and lasted for four months

before he was confirmed by the Senate on a 47 to 22 vote. By all

accounts, Brandeis went on to become one of the most influential

members of the Supreme Court in American history.

Seven decades later, President Ronald Reagan nominated Robert

Bork, a prominent judge on the D.C. Circuit Court of appeals, a

former Yale law school scholar and professor, and an influential

conservative voice. President Reagan exalted Judge Bork’s personal

and political beliefs in nominating him to the Court, but told the

Senate that it should look only at Bork’s professional qualifications.

The Senate, controlled by Democrats, did not share Reagan’s double

standard and believed that the Senate, like the president, could take

account not only of Bork’s record, but also his personal and political

values. Bork’s defeat, by a vote of 58-42, clearly did reflect the

partisan politics and values of Democratic members of the Senate,

but also his lengthy resume of speeches and writings in which he

registered objections to landmark Supreme Court opinions that

expanded the rights and liberties of Americans.

Bork’s criticisms, for example, of Brown v. Board of Education, the

1954 decision in which the Court struck down segregation in public

schools, and his rejection of a constitutional right to privacy, as set

forth in the 1965 case of Griswold v. Connecticut, provided his critics

with more than sufficient ammunition to defeat his nomination to the

Court. Bork, himself, later admitted that his long list of controversial

writings meant that, unlike judicial nominees since, he could not avoid

questions about his judicial and constitutional philosophy.

Judge Bork’s defeat was not entirely attributable to his conservative

values. Anthony Kennedy, nominated to the Supreme Court vacancy

after the rejection of Bork, was approved unanimously, 97-0.

Kennedy was a well-known conservative, but did not have Bork’s long

record of scholarly writings, which could be picked apart by the


The Senate’s constitutional duty to appraise the qualifications of

Supreme Court nominees was an invaluable addition to the

appointment power. While its judgment is always subject to criticism,

as is the president’s in nominating men and women to the Court,

history will record that the advice and consent clause has served the

nation well.

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